ORDER
1. This is an application for leave to appeal to the Supreme Court against the judgment of this Court in Bira Naik v. Sidha Kamal Nayan S A. No. 172 of 1945 : (I. L. B. (1949) l Out. 121).
2. On the filing of the application, we sent for a finding of the valuation of the property in suit. The trial Court returned a finding opining that the landed property in dispute is valued at a figure more than Rs. 5,000 Besides, the plaintiff-respondent had been given a decree for recovery of masne profits to the extent of Rs. 5,000 and odd. The decree, therefore, involves rather directly some claim or question with respect to the property of the value of Rs. 10,000 or upwards within the meaning of para 2 of S. HO, Civil P. C. As this is a decree which reverses the judgments of the Courts below, the appellant has an unrestricted right of appeal to the Supreme Court. The question whether it involves any substantial question of law within the meaning of para 3 of Section 110 of the Code does not arise in this case. The only difficulty that presented to us in course of hearing was that according to Article 133 of the Constitution the right of appeal to the Supreme Court is restricted to cases in which property in dispute is of the value of Rs. 20 ,000 or upwards. The question that emerged was whether this article should govern the present appeal. On very high authorities it has been held that the right to appeal is a vested right which vests in the litigant at the time the suit is instituted. By subsequent alteration of the law, either relating to the form or to the other limitations to the right of appeal, it cannot be taken away, unless the law purporting to take it away is, either expressly, or by necessary intendment, given a retrospective operation. We have no doubt that Article 133 has no retrospective operation. The only point that has to be clarified is whether this fixation of higher valuation relates to a matter of procedure or a question of substantive right. If it is the latter, it should be governed by the law preexisting the Indian Constitution. We have been referred to a decision of a Special Bench of the Calcutta High Court, in the case of Sadar Alt v. Dolimuddin, 56 Cal. 512 : (A. I. R. (15) 1928 cal. 640 F. B. ). In that case, the Letters Patent of the Calcutta High Court was amended, and the amendment came into effect on 14-1-1928. The amendment made it a condition precedent that no appeal from a decision of a Single Judge of the High Court should lie except with his leave. In that particular case, it so happened that the Single Judge's decision had been passed before the amendment took effect. In pursuance of the amended provision of the Letters Patent, an application was filed to the Single Judge concerned to give a leave to appeal. The learned Single Judge refused it. Notwithstanding the refusal, an appeal was filed and the question arose whether the appeal was competent. By the Special Bench of which Sir George Rankin C. J. was a party, it was held that
'the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings connected by an intrinsic unity......The date of presentation of second appeal to the High Court is not the date which determines the applicability of the amended Clause of the Letters Patent and as the matter now stands, the date of institution of the suit in each case is the determining factor.'
This decision has been followed by the Full Bench of the Patna High Court* to which Fazl Ali J. of that Court (as he then was) was a party and delivered the leading judgment. There, the question arose if a criminal case which was instituted before an Ordinance known as Special Criminal Courts Ordinance (II [2] of 1942) could attract the provisions of the Ordinance either in the matter of trial or in the matter of competency of the High Court in its revisional or other like jurisdiction. Following the Calcutta case already cited, his Lordship held that the jurisdiction of the High Court must be taken to have been left in tact notwithstanding the Ordinance and so also of the Magistrate who had taken cognisance of the case inasmuch as the criminal proceeding had started before the Ordinance was made. They, therefore, held that the trial by the special Magistrate under the Ordinance amounted to no trial, and their Lordships exercised their power under Schedule 91, Criminal P. C. and came to a decision that the accused was being detained without a trial. They, therefore, ordered his release forthwith,
3. Similar view repelling retrospectively of laws in relation to its interference with the preexisting right of appeal has been taken by & Special Bench case of the High Court of Allah bad, in the case of Bam Singh v. Shankar Dayal. 111 I. C. 6 : (A. I.R. (15) 1928 ALL. 437 F. B.)
4. I think the question is put beyond any doubt by Article 135 of the Constitution. It reads;
'Until the Parliament by law otherwise provides, the Supreme Court shall also have jurisdiction and powers' with respect to any matter to which the provisions of Article 133 or Art 134 do not apply if jurisdiction and powers in relation to that matter were exercisable by the Federal Court immediately before the commencement of this Constitution under any existing law.'
As I have already said, Article 133 does not apply to the facts of this case. In the circumstances: Article 135 must govern, that is the law that defines the jurisdiction of the Federal Court should apply.
5. It may also be noted that this application for leave to appeal had been filed long before the Constitution came into force. We should there fore, grant the petitioner the necessary certificate giving leave to appeal to the Supreme Court. The learned counsel for the opposite parties has behaved before us in an ideal manner and invited our attention to the most of the authorities on which we have acted. Under the circumstances, we make no order for costs of this proceeding. Each party should bear its own costs.
6. The prayer for stay of execution is rejected. The opposite parties shall be entitled to take out execution on furnishing security to the satisfaction of the Court below so as to safeguard restitution by the petitioner in case he succeeds in the Supreme Court.